United States v. Hernandez

United States District Court, W.D. Louisiana, Lafayette Division

May 8, 2018

UNITED STATES OF AMERICAv.MANUEL DAVID HERNANDEZ

MAG.
JUDGE CAROL B. WHITEHURST

RULING

TERRY
A. DOUGHTY, JUDGE

Pending
before the Court is Defendant Manuel David Hernandez's
(“Hernandez”) Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 [Doc. Nos. 157
and 166], pursuant to the mandate issued herein by the Fifth
Circuit on August 12, 2016. The motion is fully briefed, and
the Court is prepared to rule.

I.
FACTS AND PROCEDURAL HISTORY

On
October 14, 1997, Hernandez was indicted on three counts of
bank robbery by force and violence, in violation of 18 U.S.C.
§§ 2113(a) and (d) (Counts 1, 4, and 7); three
counts of using and carrying a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. §
924(c) (Counts 2, 5, and 8); and three counts of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (Counts 3, 6, and 9). On February 5, 1998, a
jury convicted Hernandez on all counts of the Indictment.

The
Pre-Sentence Investigation Report (“PSR”),
released on March 4, 1998, calculated a separate
“group” for each of the armed bank robberies, and
for each instance of Hernandez's illegal use and carrying
of a firearm during and in relation to those robberies.
Considering all of those groups, the PSR recommended a total
offense level of 33. However, in light of a finding the
defendant qualified for sentencing as a career offender, the
PSR determined a higher base offense level of 34 applied. The
PSR noted that same base offense-34-was similarly applicable
because the defendant qualified as an “armed career
criminal” under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e).

With
regard to his criminal history, Hernandez was assessed nine
criminal history points for three adult criminal convictions:
two armed robbery convictions and one conviction for 21
residential burglaries, all in violation of Illinois
law.[1]
Two points were added because he committed the instant
offense while on parole, and an additional point was added
because he committed the instant offense less than two years
after his release from custody, resulting in a total of 12
criminal history points. While that score would typically
correlate to a Criminal History Category V, because Hernandez
was subject to the career offender provisions and armed
career criminal provisions, he was automatically categorized
as a Category VI offender.

Hernandez's
offense level of 34 and his Criminal History Category VI
correlated to a then-mandatory guideline range of 262-327
months imprisonment on the bank robbery and
felon-in-possession counts. On the three § 924(c)
counts, his guideline range was the statutorily-mandated
penalty: 60 months for his first conviction, and 240 months
(20 years) for each of his subsequent convictions, all to be
served consecutively to each other, and to the sentences
imposed on the other counts.

On
August 11, 1998, Hernandez was sentenced to a total of 867
months as follows: 300 months each on two of the bank robbery
convictions (concurrent with each other), and 27 months on
the third bank robbery conviction (consecutive to the other
bank robbery sentences), for a total sentence of 327 months
on the three bank robbery counts; 180 months on each of the
felon-in-possession counts (concurrent with each other, and
with the sentences on two of the bank robbery counts); and 60
months on the first § 924(c) conviction and 240 months
each on the other two § 924(c) convictions, with the
sentences on all the § 924(c) counts to be served
consecutively to each other, and to all other counts of
conviction.

On
April 16, 2001, Hernandez filed his first motion to vacate,
set aside, or correct sentence, pursuant to 28 U.S.C. §
2255, which he later moved to supplement or amend three
times. On August 30, 2002, the district court denied that
§ 2255 motion. Both the district court and the Fifth
Circuit later denied Hernandez's request for a
certificate of appealability. The district court's
judgment thus became final.

Hernandez
subsequently filed with the Fifth Circuit a motion for
authorization to file a second and successive motion to
vacate, set aside or reduce sentence, pursuant to 28 U.S.C.
§ 2255, based on the United States Supreme Court's
recent decisions in Johnson v. United States, 135
S.Ct. 2551 (2015), which held that the ACCA's residual
clause was unconstitutionally vague, and Welch v. United
States,136 S.Ct. 1257 (2016), which determined that
Johnson is retroactively applicable to cases on
collateral review. Hernandez sought authorization to
challenge the district court's enhancement of his
sentence under the ACCA, specifically 18 U.S.C. §
924(e)(1), based on his prior convictions under Illinois law
for burglary and two robberies. He also argued that his
sentence was improperly enhanced under § 924(c)(3)(B) in
connection with his convictions for using a firearm during a
crime of violence. Lastly, he argued that he is actually
innocent of his conviction under 18 U.S.C. § 922(g)
because his civil rights were restored by the State of
Illinois.

On
August 12, 2016, the Fifth Circuit tentatively granted
Hernandez authorization to file a successive § 2255
motion only as to a claim his sentence was unlawfully
enhanced under the ACCA based on his prior Illinois
convictions for robbery and burglary, stating, “Our
grant of authorization is tentative in that the district
court must dismiss the § 2255 motion without reaching
the merits if it determines that Hernandez has failed to make
the showing required by § 2255(h)(2), § 2244(b)(4);
Reyes-Requena, 243 F.3d at 899.”

II.
LAW AND ANALYSIS

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Under
the ACCA, a defendant who has three or more earlier
convictions for a &ldquo;serious drug offense&rdquo; or a
&ldquo;violent felony&rdquo; that were &ldquo;committed on
occasions different from one another&rdquo; is subject to an
enhanced penalty of 15 years to life. 18 U.S.C. &sect;
924(e)(1). The ACCA defines &ldquo;violent felony&rdquo; as
any felony that either &ldquo;has as an element the use,
attempted use, or threatened use of physical force against
the person of another&rdquo;; or &ldquo;is burglary, arson,
or extortion, involves the use of explosives, or
otherwise involves conduct that presents a serious
potential risk of physical injury to ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.